Director of Public Prosecutions (DPP) Mar Kachale discontinued the case.

But Khumbo Soko, a lawyer who represented Centre for Development of People (Cedep) executive director Gift Trapence and Centre for Human Rights and Rehabilitation (CHRR) executive director Timothy Mtambo in dragging Msonda to court, filed for a judicial review and requested the Chief Justice to determine certification whether the matter should be handled as a constitutional case or npt in pursuant to Section 9 (2) and (3) of the courts act).

But the Chief Justice in his ruling dated July27, 2016 referred the matter to High Court to address some procedures the court did not follow before referring the matter to the head of the judiciary.

Nyirenda SC ruled that such matters originate with an application for leave to seek judicial review before whch the application us commenced.

“Strictly speaking, without leave it cannot be contended that there is a substantive action for judicial review,” teh Chief Justice’s ruling reads in part.

He further stated that “there is no substantive action before grant pof leave and even thereafter before instituting the substantive action.”

Judiciary spokesman Mlenga Mvula confirmed the case has been referred to High Court.

Mtambo and Trapence argued that Kachale’s decision to discontinue criminal proceedings against Msonda in the case was procedurally improper.

“She failed to take into consideration other relevant matters such as the fundamental constitutional principle set out in Section 12 (1) (d) of the Constitution, the fundamental rights and dignity of persons of homosexual orientation as is guaranteed to them under Chapter IV of the Constitution of Malawi and Malawi’s human rights obligations under international law.”

The two are asking the DPP to prosecute Msonda.

“An order akin to mandamus directing the respondent to expeditiously and without delay take all reasonable steps to continue and conclude the prosecution against Mr. Msonda in criminal case No. 16 of 2016 or alternatively an order directing the respondent to desist from interfering with the applicant’s prosecution of the criminal case No. 16 of 2016 against Mr. Msonda,” reads the application.

Cedep and CHRR’s leaders want Msonda to answer a charge of incitement to break the law under Section 124 (1) (b) of the Penal Code.

Under the current law, those found guilty of homosexuality in Malawi, can be sentenced to up to 14 years in prison, with hard labour.

Presently, government seems indecisive on the matter with President Peter Mutharika speaking of a referendum and the Justice Minister hinting at possible law reforms.